Citation Nr: 0011676
Decision Date: 05/03/00 Archive Date: 05/09/00
DOCKET NO. 97-00 773 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen the claim of service connection for colds, to include
upper respiratory disorders, sinus infections and nasal
polyps.
2. What evaluation is warranted for the period from August
7, 1996, for the service-connected post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The veteran and acquaintances
ATTORNEY FOR THE BOARD
Scott Craven
INTRODUCTION
The veteran had active military service from May 1943 to
March 1946.
In July 1948, the RO denied the veteran's claim of
entitlement to service connection for catarrhal fever.
Subsequently, in December 1954, the RO denied the veteran's
claim of entitlement to service connection for colds. The
veteran was notified of each determination, but did not file
a timely appeal.
The Board of Veterans' Appeals (Board) received this case on
appeal from an August 1996 decision of the RO, which
determined that new and material evidence had not been
submitted to reopen the veteran's claims of service
connection for nervousness and colds.
In October 1997, the RO granted service connection for PTSD,
and assigned a 10 percent rating, effective on August 7,
1996. In January 2000, the RO assigned a 30 percent rating,
effective on August 7, 1996. The veteran subsequently
perfected his appeal in a timely manner for a higher rating.
FINDINGS OF FACT
1. Service connection for colds was denied by an unappealed
final RO decision dated in December 1954.
2. Evidence received since the December 1954 RO decision,
when considered alone or in conjunction with all of the
evidence of record, is not new and probative of the issue of
entitlement to service connection for colds, to include upper
respiratory disorders, sinus infections and nasal polyps, and
thus is not so significant that it must be considered in
order to fairly decide the merits of the claim.
3. Both before and after November 7, 1996, PTSD was not
productive of more than a definite impairment in the
veteran's ability to establish or maintain effective and
wholesome relationships, or by psychoneurotic symptoms
resulting in more than definite industrial impairment.
4. After November 7, 1996, PTSD was not manifested by more
than occupational and social impairment, with an occasional
decease in work efficiency and intermittent periods of
inability to perform occupational tasks, due to such symptoms
as depressed mood, anxiety and chronic sleep impairment.
5. Neither the old rating criteria, pursuant to 38 C.F.R.
§ 4.132, Diagnostic Code 9411 (1996), nor the new rating
criteria, pursuant to 38 C.F.R. § 4.130, Diagnostic Code
9440 (1999), provide for a higher evaluation for PTSD.
CONCLUSIONS OF LAW
1. Evidence received since the December 1954 final RO
decision is not new and material; the veteran's claim of
service connection for colds, to include upper respiratory
disorders, sinus infections and nasal polyps, may not be
reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §
3.156(a) (1999).
2. The criteria for a rating in excess of 30 percent for
PTSD, since August 7, 1996, have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code
9411 (1996); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.130, Diagnostic
Code 9411 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
In connection with the December 1954 rating decision, the RO
considered evidence including the veteran's service medical
records and an October 1954 private medical record.
A careful review of the service medical records shows that in
June 1943, the veteran was reported to have acute catarrhal
fever. On discharge examination in March 1946, he was
reported to have a history of acute catarrhal fever in June
1943. Physical examination revealed his nose, sinuses,
tongue, palate, pharynx, larynx, tonsils and thorax to be
normal and a photoflurographic examination of the chest was
negative. No defects were reported.
In an October 1954 private medical record, the veteran was
diagnosed, in part, with frequent colds.
The evidence submitted since the December 1954 decision
includes private medical records from Punxsutawney Area
Hospital, reflecting treatment from May 1994 to November
1997; private medical records from Cardiology-Internal
Medicine, Ltd., reflecting treatment from August 1996 to
January 1999; private medical records from Shadyside
Hospital, reflecting treatment from November 1994 to May
1999; personal hearing testimony from a January 1997 hearing
at the RO; an April 1997 VA PTSD examination; private medical
records from Punxsutawney Medical Associates, P.C.,
reflecting treatment from March 1997 to January 1999; a
September 1997 VA PTSD examination; a July 1998 lay statement
by a friend of the veteran; a June 1998 VA hypertension
examination; a December 1999 PTSD examination; a February
2000 hypertension examination; and lay statements by the
veteran.
In May 1994, a chest x-ray study from Punxsutawney Area
Hospital revealed that his lungs were clear and an impression
of no evidence of acute or active disease of the thorax. In
October 1994, private medical records from that facility
revealed that clear lungs to auscultation and percussion.
During a hearing at the RO in January 1997, the veteran
reported that he was not too worried about his cold issue on
appeal, but he was interested in his claim for nervousness.
He reported that he had had catarrhal fever in service and
that he had had chronic sinus infections over many years. He
indicated that he had had polyps removed twice and that he
believed that these were chronic residuals of his fever in
service. He reported that the doctors that had previously
treated him a long time ago had passed away. He reported
that he did not take any medication for his nervousness. He
indicated that his ship had survived three Kamikaze attacks
in service and that 500 men had been killed.
At a VA PTSD examination in April 1997, the veteran reported
participating in 13 major invasions in the South Pacific
during World War II, including the invasion of Okinawa. He
was reported to have retired in 1980 after delivering
groceries for 25 years. He reported having been married for
47 years, but his wife was now in a home with Alzheimer's
disease, and this caused a significant life change. The
veteran reported having nightmares of the action at Okinawa
and symptoms of anxious arousal, anger, irritability,
intrusive experiences, defensive avoidance (stopping himself
from thinking about the past and staying away from people and
places) and dissociation.
The veteran was reported to be quite well kept, casually
dressed, cooperative and articulate with good eye contact.
He was reported to be adept at repressing painful memories
and feelings of his traumatic stressors in service. His
wife's illness was also reported to bother him greatly but he
seemed to describe her illness and war trauma with the same
emotional set. There was no evidence of a psychosis. The
veteran was reported to be experiencing a classically
elevated trauma profile in addition to painful affect,
including marked anger and avoidance as well as irritability.
This dysphoria was reported to correlate quite highly with
trauma and may suggest that coping maneuvers used to combat
trauma symptomatology were not effective. The veteran was
diagnosed with chronic PTSD. In a September 1997 addendum,
the veteran was diagnosed with PTSD, and assigned a Global
Assessment of Functioning (GAF) Score of 65.
In July 1998, a shipmate of the veteran reported recalling
that the appellant was treated in sick bay for trouble
breathing.
At a December 1999 VA PTSD examination, the examiner
indicated that the veteran's claims file had been reviewed.
The veteran reported that his wife had passed away and that
he resided alone. He reported that he occasionally saw his
son during the year on holidays, and that he spent most of
his time doing yard work and gardening, that he drove and was
independent in his activities of daily living. He reported
that he occasionally cooked and went to restaurants to eat.
He reported that he did his own housecleaning and did yard
work with some assistance from neighbors and friends. He
reported that he had a niece, some neighbors and friends who
either visited him or called him on a daily basis. He
reported that he had discontinued medication for his nerves
due to side effects and denied any history of psychiatric
hospitalizations.
The veteran reported that he had a chronic history of sleep
disturbance. He reported that he had a nightmare of an
explosion that he had heard during World War II at least once
a month. He indicated that he would wake up extremely
startled and nervous and be unable to sleep for the rest of
the night. He reported that he had recollections of his time
in service on a daily basis, although he did not dwell on
them. He reported that he avoided fireworks and loud noises
and that he would experience an extreme hyperstartle response
following loud, unexpected noises. He reported that he was
generally nervous and anxious and indicated that his anxiety
would increase when he was around other people, particularly
when children were screaming or making loud noises. He
reported that, although he had friends, he could be irritable
and short-tempered when he was around others. He indicated
that it was difficult for him to make new friends and he did
not have much interest in socializing, although he was able
to maintain the friendships that he had developed in the
past. The veteran reported that he was occasionally moody
but his appetite was good. He denied episodes of
tearfulness, suicidal ideation or a history of suicide
attempts.
The veteran was oriented as to person, place and time, and he
was cooperative, although he was somewhat uncomfortable with
limited eye contact. Throughout the interview he fidgeted
with his cap suggesting some anxiety and nervousness. He was
appropriately dressed and his hygiene and grooming were fair.
His speech was fluent, coherent and normal in rate and
volume. His mood was fair and his affect was normal in
range. No manic episodes were reported. Although the
veteran had described that he was nervous and anxious on an
almost daily basis, he denied episodes of panic attacks. The
veteran's thoughts were reported to be circumstantial and, at
several times, he required redirection to the question that
had been asked of him, although he was easily redirected and
able to provide information in response to questions. He
denied hallucinations, paranoia, and no delusions were noted.
His memory as fair, his cognitive functioning was adequate,
and his insight and judgment were fair to good.
The veteran was diagnosed with PTSD and his GAF score was 60.
The examiner noted that the veteran continued to experience
significant sleep disturbance with intrusive symptoms and to
display avoidance behavior, irritability and a hyperstartle
response. The examiner reported that the veteran's current
symptoms appeared to have a moderate impact on his social
functioning as he found it difficult to initiate new
friendships and tended to spend most of his time isolated at
home.
II. Analysis
A. New and Material Evidence
In order to establish service connection for a disability,
there must be objective evidence that establishes that such
disability either began in or was aggravated by service, or
was proximately due to or the result of a service-connected
disability. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§§ 3.303, 3.310 (1999).
In a July 1948 rating decision, the RO, in part, denied
service connection for catarrhal fever. In December 1954,
the RO denied service connection for colds and informed the
veteran of this decision in the same month. No response was
received from the veteran within one year of notification of
these denials. As the veteran did not initiate an appeal of
the December 1954 rating decision this decision is final and
the claim of entitlement to service connection for colds, to
include upper respiratory disorders, sinus infections and
nasal polyps, may not be reopened and reviewed on a de novo
basis unless new and material evidence is submitted.
38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.104(a),
3.156, 20.1104, 20.1105 (1999).
The issue of new and material evidence must be addressed in
the first instance by the Board because this issue goes to
the Board's jurisdiction to reach the underlying claim and
adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d
1380, 1383 (Fed. Cir. 1996). If the Board finds that no such
evidence has been offered, that is where the analysis must
end, and what the RO may have determined in this regard is
irrelevant. Id. Further analysis, beyond the evaluation of
whether the evidence submitted in the effort to reopen is new
and material, is neither required nor permitted. Id. at
1384. Any finding entered when new and material evidence has
not been submitted "is a legal nullity." Butler v. Brown,
9 Vet. App. 167, 171 (1996).
The United States Court of Appeals for Veterans Claims
(Court) has held that the Board must perform a three step
analysis to reopen a claim based on new evidence. First, the
Board must determine whether the evidence is "new and
material." Second, if the Board determines that the claimant
has produced new and material evidence, the claim is reopened
and the Board must evaluate whether the claim is well
grounded. Finally, the Board evaluate the merits of a well
grounded claim only if the duty to assist has been fulfilled.
Elkins v. West, 12 Vet. App. 208, 218-19 (1999).
New and material evidence means evidence not previously
submitted which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a).
Thus, in the present case, new and material evidence must
have been submitted since the December 1954 decision in order
to reopen the veteran's claim. It should also be pointed out
that, in determining whether evidence is new and material,
"credibility of the evidence must be presumed." Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
However, after carefully considering the evidence submitted
since the December 1954 RO decision, in light of evidence
previously available, the Board is compelled to find that the
veteran has not submitted evidence which is new and material.
In this regard, while the evidence submitted since the last
final RO decision documents in service cold symptoms and that
the veteran had had upper respiratory disorders, chronic
sinus infections and nasal polyps that were related to
service, the medical records, while new, do not address
whether any current manifestation of a cold disorder is
related to his military service.
To illustrate, in 1994, a chest x-ray study from Punxsutawney
Area Hospital revealed clear lungs and no acute or active
disease of the thorax. The Board notes that, before service
connection may be granted, there must be competent evidence
of a nexus between an inservice injury or disease and a
current disability. Such a nexus must be shown by medical
evidence. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995);
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly,
as there remains no competent evidence demonstrating that any
current cold symptomatology is due to a disease or injury
incurred in or aggravated by service, the Board is compelled
to find that the veteran has not submitted evidence which is
new and material.
While the veteran has contended that he currently has
residuals of his cold symptomatology due to catarrhal fever
in service, these statements do not provide a competent basis
upon which to demonstrate that he has current cold
symptomatology due to service. Lay assertions of medical
causation, including those of the veteran's friends, cannot
suffice to reopen a claim under 38 U.S.C.A. § 5108. Simply
put, while the veteran is capable of providing evidence of
symptomatology, a layperson is generally not capable of
opining on matters requiring medical knowledge, such as the
condition causing or aggravating the symptoms. Routen v.
Brown, 10 Vet. App. 183, 186 (1997). Thus, the veteran's lay
assertions cannot suffice to reopen a claim under 38 U.S.C.A.
§ 5108. Moray v. Brown, 5 Vet. App. 211, 214 (1993).
Consequently, the Board must conclude that, because no
competent evidence shows that the veteran has current cold
symptomatology due to disease or injury incurred in or
aggravated by service, the evidence does not bear directly
and substantially upon the specific matter under
consideration, and is not so significant that it must be
considered in order to fairly decide the merits of the claim.
Hence, the evidence submitted since the last final decision
is not new and material. 38 C.F.R. § 3.156. The benefit
sought on appeal must, therefore, be denied.
The Board views its discussion as sufficient to inform the
veteran of the elements necessary to reopen his claim. See
Graves v. Brown, 9 Vet. App. 172, 173 (1996). In this regard,
the above discussion informs the veteran of the steps he
needs to fulfill in order to reopen his claim, and an
explanation why his current attempt to reopen the claim must
fail.
The benefit of the doubt doctrine does not need to be applied
in this case because the veteran has not fulfilled his
threshold burden of submitting new and material evidence to
reopen his finally disallowed claim. Annoni v. Brown, 5 Vet.
App. 463, 467 (1993).
B. The Initial Rating Assigned for the Service-Connected
PTSD
As a preliminary matter, the Board finds that the veteran's
claim for higher original evaluation for PTSD is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a). See
Fenderson v. West, 12 Vet. App. 119 (1999). The Board is
also satisfied that all relevant facts have been properly and
sufficiently developed. Accordingly, no further development
is required to comply with the duty to assist the veteran in
establishing his claim. See 38 U.S.C.A. § 5107(a).
Disability ratings are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. Individual disabilities are assigned
separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. §
4.1. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
The rating criteria for evaluating PTSD changed on November
7, 1996. The veteran effectively filed his claim of service
connection for PTSD in August 1996. Where a law or
regulation changes after a claim has been filed or reopened,
but before the administrative or judicial appeal process has
been concluded, the version most favorable to the veteran
will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991). Therefore, the Board must determine whether the
amended regulation is more favorable to the veteran and apply
the more favorable of the old and new rating criteria to his
claim. However, as the revised regulations in this case do
not allow for their retroactive application prior to November
7, 1996, the Board cannot apply the new provisions prior to
that date. Rhodan v. West, 12 Vet. App. 55, 57 (1998). In
other words, the Board must apply the old and newly revised
regulations to rate the disability for periods from and after
November 7, 1996, using whichever version is more favorable
to the appellant, and apply only the old version of the
regulations to rate the disability for any period preceding
November 7, 1996. See VAOPGCPREC 3-2000 (April 10, 2000).
The Board notes that its decisions must be based on
consideration of all evidence and material of record, and not
merely evidence which pre-dates or post-dates a pertinent
change in the rating schedule. Id.
Under the old rating criteria in effect prior to November 7,
1996, a 30 percent evaluation was warranted when there was
definite impairment in the ability to establish or maintain
effective and wholesome relationships with people and the
psychoneurotic symptoms resulted in such reduction in
initiative, flexibility, efficiency and reliability levels as
to produce definite industrial impairment. A 50 percent
evaluation was warranted when the ability to establish or
maintain effective or favorable relationships was
considerably impaired and, by reason of psychoneurotic
symptoms, the reliability, flexibility and efficiency levels
were so reduced as to result in considerable industrial
impairment.
In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated
that the term "definite" in 38 C.F.R. § 4.132 was
"qualitative" in character, whereas the other terms were
"quantitative" in character, and invited the Board to
"construe" the term "definite" in a manner that would
quantify the degree of impairment for purposes of meeting the
statutory requirement that the Board articulate "reasons and
bases" for its decision. See 38 U.S.C.A. § 7104(d)(1).
In a precedent opinion, the VA General Counsel concluded that
"definite" is to be construed as "distinct, unambiguous, and
moderately large in degree." It represents a degree of
social and industrial inadaptability that is "more than
moderate but less than rather large." VAOPGCPREC 9-93
(November 9, 1993). The Board is bound by this
interpretation of the term "definite." See 38 U.S.C.A. §
7104(c).
The general rating formula for mental disorders under the new
rating criteria is as follows: A 50 percent evaluation
requires occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships. A 30
percent evaluation requires occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and normal conversation), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events).
The veteran contends, in essence, that the severity of his
service-connected PTSD warrants a higher rating. In the
judgment of the Board, however, the level of disability
demonstrated for the period prior to November 7, 1996
warrants no more than a 30 percent rating. 38 C.F.R. §
4.132, Diagnostic Code 9411 (1996). In this respect, the
appellant was not examined for PTSD by VA between the date of
his claim and November 7, 1996. Still, there is no evidence,
including VA examinations in January 1997, September 1997 and
December 1999, demonstrating that the veteran's ability to
establish or maintain effective or favorable relationships
with people was more than definitely impaired prior to
November 7, 1996. Moreover, there is also no evidence
demonstrating that his reliability, flexibility and
efficiency levels were so reduced by reason of psychoneurotic
symptoms that he had considerable industrial impairment.
Thus, the Board finds that his PTSD was not consistent with a
higher rating than that already assigned for the period prior
to November 7, 1996. See 38 C.F.R. § 4.132, Diagnostic Code
9411 (1996); VAOPGCPREC 9-93.
Furthermore, when evaluating the level of disability
demonstrated for the period after November 7, 1996, under
both the old and new rating criteria, the preponderance of
the evidence does not demonstrate that PTSD warrants higher
than a 30 percent rating. To illustrate, at an April 1997 VA
examination, the veteran was reported to have marked anger,
avoidance, dissociation and irritability. Still, there was
no evidence of any panic attacks, memory problems, and he was
described as articulate. Additionally, the follow-up
September 1997 addendum assigned a GAF level of 65, which
indicates some mild symptoms or some difficulty in social,
occupational or school functioning, but to be generally
functioning pretty well and to have some meaningful
interpersonal relationships. See American Psychiatric
Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
(Fourth Edition).
Also, on VA examination in December 1999, the veteran
reported that he had a niece, some neighbors and friends who
either visited him or called him on a daily basis and that he
spent most of his time doing yard work and gardening. He
reported that, although he had friends, he could be irritable
and short-tempered when he was around others and that it was
difficult for him to make new friends. He was diagnosed with
PTSD and assigned a GAF level of 60. The examiner reported
that the veteran's current symptoms appeared to have a
moderate impact on his social functioning, as he had found it
difficult to initiate new friendships and tended to spend
most of his time isolated at home. Thus, the Board finds
that PTSD was not manifested by symptomatology consistent
with a finding of considerable impairment in the ability to
establish or maintain effective or favorable relationships
with people or to result in considerable industrial
impairment. Consequently, a rating higher 30 percent after
November 7, 1996 pursuant to 38 C.F.R. § 4.132, Diagnostic
Code 9411 is not warranted.
In addition, the veteran is not shown to have occupational
and social impairment with reduced reliability. In fact, on
VA examination in December 1999, although his thoughts were
reported to be circumstantial, the veteran was easily
redirected and was able to provide information in response to
questions. His speech was fluent, coherent and normal in
rate and volume, his mood was fair, his affect was normal in
range, his memory was fair, his cognitive functioning was
adequate, his insight and judgment were good, and he denied
any episodes of panic attacks. Consequently, the veteran is
not entitled to a rating higher than 30 percent for the
service-connected PTSD after November 7, 1996. 38 C.F.R.
§ 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. § 4.130,
Diagnostic Code 9440 (1999).
The benefit sought on appeal is denied.
In reaching this decision, the Board considered the doctrine
of reasonable doubt pursuant to 38 U.S.C.A. § 5107 and 38
C.F.R. §§ 3.102, 4.3; however, as the preponderance of the
evidence is against the veteran's claim for higher rating for
the service-connected PTSD, the doctrine is not for
application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
New and material evidence not having been submitted to reopen
the claim of entitlement to service connection for colds, to
include upper respiratory disorders, sinus infections and
nasal polyps, the appeal is denied.
Entitlement to a rating in excess of 30 percent, effective
from August 7, 1996, for PTSD is denied.
REMAND
In March 2000, the RO denied service connection for
arteriosclerotic heart disease, myocardial infarction, three-
vessel coronary artery disease and hypertension. The veteran
subsequently filed what appears to be a Notice of
Disagreement. A Statement of the Case, however, was never
issued by the RO. Therefore, in accordance with Manlicon v.
West, 12 Vet. App. 238 (1999), this issue is REMANDED to the
RO for the following action:
The RO should furnish the veteran and his
representative a Statement of the Case
and advised of the requirements to
complete the appeal. The veteran should
then be afforded an opportunity to reply.
Any additional evidentiary development
deemed appropriate should be undertaken.
The purpose of this REMAND is to comply with Court precedent.
This issue should be returned to the Board only if the
veteran files a timely substantive appeal following the
issuance of a Statement of the Case.
DEREK R. BROWN
Member, Board of Veterans' Appeals